IN THE CASE OF:	  

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080018346 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, correction to his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) to show award of the Purple Heart with first oak leaf cluster.   

2.  The applicant states, in effect, that he was wounded twice while serving in Vietnam and this is not reflected on his DD Form 214.  He also states, in effect, that in July 1968 while serving in Vietnam he received a fragment wound in his left elbow that was removed at Fort Benning, Georgia, before his separation.  In September 1968, near Cu Chi, Vietnam, he was hit by grenade fragments on his lower right leg and medically evacuated to a field hospital.  The shrapnel was removed and his leg became infected so he was transferred to a hospital at Cam Ranh Bay, then to a hospital in Japan, and then to a hospital at Fort Devens, Massachusetts.

3.  In support of his application, the applicant provides copies of his medical transfers and hospital assignment orders; his Purple Heart Certificate; his DD Form 214; and a letter from the Veterans Administration (VA).  

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of 

Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant's military records show he was inducted into the Army of the United States, in pay grade E-1, on 27 September 1967.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (light weapons infantryman).  He served in Vietnam from
10 March 1968 to 12 October 1968, with Company D, 3rd Battalion (Airborne), 187th Infantry, and participated in the following three campaigns:  Tet Counteroffensive (30 January 1968 – 1 April 1968); Vietnam Counteroffensive, Phase IV (2 April 1968 – 30 June 19678); and Vietnam Counteroffensive, Phase V (1 July 1968 – 1 November 1968).

3.  The applicant's DA Form 20 (Enlisted Qualification Record), Item 40 (Wounds), shows "Fragment wound to right leg – 6 Sep 68."  Item 40 does not list any other wounds or dates during his service in Vietnam.  Item 41 (Awards and Decorations) does not list the Purple Heart or Purple Heart with first oak leaf cluster.  

4.  The applicant submits a copy of a certificate, dated 8 September 1968, for award of the Purple Heart for wounds he received in action in the Republic of Vietnam on 6 September 1968.

5.  The applicant’s records show he departed Vietnam in a patient status on 12 October 1968 for further treatment and/or disposition in Japan and in the States.

6.  There is no indication in the applicant's service records that he was awarded the Good Conduct Medal.  There also is no evidence the applicant was disqualified by his unit commander for award of the Good Conduct Medal.  His conduct and efficiency were rated as "excellent" throughout his service.

7.  The applicant was honorably released from active duty, in pay grade E-4 on 26 September 1969, at the expiration of his term of service.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his remaining Reserve obligation.
8.  Item 24 (Decorations, Medals, Badges, Commendations, Citations and Campaign Ribbons Awarded or Authorized) of the applicant’s DD Form 214 does not list the Purple Heart or the Purple Heart with first oak leaf cluster.

9.  The Vietnam Casualty Roster shows the applicant was wounded on 6 September 1968 and the casualty status code was "23."  This code indicates the status "hostile wounded in action, not serious, hospitalized."  The roster does not show he was wounded or injured on any other dates during his period of service in Vietnam.

10.  The applicant provides a copy of a letter from the VA, dated 15 July 1982.  The letter advised the applicant that his disabilities of residual shell fragment wound to the left forearm and residual shell fragment wound to his right lateral calf were service-connected, but they were less that 10 percent disabling and compensation was not payable.

11.  A review of the Awards and Decorations Computer Assisted Retrieval System (ADCARS) of the records of the applicant's units for the timeframe the applicant served in Vietnam was conducted.  This review failed to show any orders were published authorizing award of the Purple Heart or the Purple Heart with first Oak Leaf Cluster pertaining to the applicant.  

12.  Army Regulation 600-8-22 (Military Awards) provides, in pertinent part, that the Purple Heart is awarded for a wound sustained as a result of hostile action.  Substantiating evidence must be provided to verify that the wound was the result of hostile action, the wound must have required treatment by military personnel, and the medical treatment must have been made a matter of official record.

13.  Army Regulation 600-8-22 also provides that a Purple Heart is authorized for the first wound suffered under the above conditions, but for each subsequent award an oak leaf cluster will be awarded.

14.  Army Regulation 600-8-22 further provides that the Good Conduct Medal is awarded to individuals who distinguish themselves by their conduct, efficiency and fidelity during a qualifying period of active duty enlisted service.  This period is 3 years except in those cases when the period for the first award ends with the termination of a period of Federal military service.  Although there is no automatic entitlement to the Good Conduct Medal, disqualification must be justified.  

15.  Department of the Army Pamphlet 672-3 (Unit Citation and Campaign Participation Credit Register) shows that his unit was cited for award of the Presidential Unit Citation, by Headquarters, Department of the Army General Orders Number 38, dated 1971; the Valorous Unit Award, by Headquarters, Department of the Army General Orders Number 22, dated 1976; the Meritorious Unit Commendation, by Headquarters, Department of the Army General Orders Number 22, dated 1976; the Republic of Vietnam Gallantry Cross with Palm Unit Citation, by Headquarters, Department of the Army General Orders Number 43, dated 1970; and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation by Headquarters, Department of the Army General Orders Number 48, dated 1971.

16.  Army Regulation 600-8-22 also authorizes a bronze service star, based on qualifying service, for each campaign listed in Appendix B of this regulation and states that authorized bronze service stars will be worn on the appropriate campaign or service medal, including the Vietnam Service Medal.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his DD Form 214, dated 1 October 1969, does not show his award of the Purple Heart and the Purple Heart with first oak leaf cluster.  There are no general orders that show the applicant was awarded the Purple Heart or the Purple Heart with first oak leaf cluster.  The evidence of record shows he sustained fragmentation wounds to the right leg on 6 September 1968, in the Republic of Vietnam, as a result of hostile action.  Despite the lack of general orders awarding the applicant the Purple Heart, the evidence shows he is qualified for award of the Purple Heart for wounds received as a result of hostile action on 6 September 1968, as verified by the Vietnam Casualty Roster.  Therefore, he is entitled to award of the Purple Heart and to have this award shown on his DD Form 214.  

2.  The applicant's service records provide no evidence he ever sustained or was treated for wounds received as a result of hostile action on more than one occasion or that he was eligible for award of a second Purple Heart.  A second award of the Purple Heart cannot be granted solely because the applicant's disability of residual shell fragment wound to left forearm was determined by the VA to be service-connected.  The criteria for award of the Purple Heart specified in the applicable regulation must be met in order that an award of the Purple Heart can be made.  Based on the foregoing, he is not entitled to award of a second Purple Heart or, in effect, the Purple Heart with first oak leaf cluster.  

3.  The evidence of record shows that the applicant completed a qualifying period of service for award of the Good Conduct Medal.  There is no evidence his commander ever disqualified him from receiving the award and no evidence of 
any misconduct which would justify denying him the award and his conduct and efficiency were rated as "excellent" throughout his service.  In view of the foregoing, it is concluded that the applicant met the basic qualifications for award of the Army Good Conduct Medal and it would be appropriate to award him the first award for the period 27 September 1967 to 26 September 1969 and to add it to his DD Form 214.

4.  General orders authorized the applicant’s unit award of the Presidential Unit Citation, the Valorous Unit Award, the Meritorious Unit Commendation, the Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation during his tenure of assignment in Vietnam.  These unit awards are not shown on his DD Form 214.  Therefore, he is entitled to have his DD Form 214 corrected to show these unit awards.

5.  Evidence of record shows the applicant participated in three campaigns during his service in Vietnam.  He is therefore further entitled to award of three bronze service stars to be affixed to his already-awarded Vietnam Service Medal and to add them to his DD Form 214 at this time.

6.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

____x___  ___x____  ____x___  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by: 

	a.  deleting from item 24 of his DD Form 214 the Vietnam Service Medal;


	b.  awarding the applicant the Purple Heart for wounds received as a result of hostile action on 6 September 1968;

	c.  awarding the applicant the Army Good Conduct Medal (first award) for the period from 27 September 1967 to 26 September 1969;
   
   d.  adding to item 24 of his DD Form 214 the Purple Heart, Army Good Conduct Medal (first award), Vietnam Service Medal with three bronze service stars, Presidential Unit Citation, Valorous Unit Award, Meritorious Unit Commendation, Republic of Vietnam Gallantry Cross with Palm Unit Citation, and the Republic of Vietnam Civil Actions Honor Medal First Class Unit Citation; and
   
   e.  providing him a corrected separation document that includes these changes.

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to award of the Purple Heart with first oak leaf cluster.



      ___________x____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080018346



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ABCMR Record of Proceedings (cont)                                         AR20080018346



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